Article 613
Easements – an encumbrance imposed upon an immovable for the benefit of the community or one or more persons or for the benefit of another immovable belonging to a different owner
• Real right
• There is rightful limited use without ownership or possession
• Refers to immovables Rule in choosing
The one where the way is SHORTEST and will cause LEAST damage should be chosen. If these two
circumstances do not concur in one single tenement, the way which will cause the least damage should be used, even if it will not be the shortest.
Article 614
Characteristics of Easement 1. real right
2. imposable only on another’s property
3. jus in re aliena – a real right that may be alienated though the naked ownership is maintained
4. it is a limitation or encumbrance on the servient estate for another’s benefit 5. there is INHERENCE or INSEPARABILITY
6. it is INDIVISIBLE 7. it is INTRANSMISSIBLE 8. it is PERPETUAL Note:
a. It is essential that there is a BENEFIT b. NOT essential that the benefit be exercised c. NOT essential that the benefit be very great
d. The benefit should not be so great as to completely absorb or impair the usefulness of the servient estate
e. The utility or benefit goes to the dominant estate – limited use but NO possession f. The exercise is naturally restricted by the needs of the dominant estate or of its owner g. Easements are not presumed, but may be imposed by law
• There can be NO easement imposed on PERSONAL property Article 615
Article 616 Classification According to benefit
1. real – for the benefit of another immovable belonging to a different owner 2. personal – for the benefit of one or more persons or of a community According to manner
1. continuous – their use is incessant, or may be incessant without the intervention of any act of man 2. discontinuous – they are used at intervals and depend upon the acts of man
According to existence
1. apparent – those made known and continually kept by external signs 2. non-apparent – show no external indication of their existence According to purpose
1. positive – the owner of the servient estate is obliged to allow something to be done on his property or do it himself
2. negative – the owner of the servient estate is prohibited to do something According to the right given
1. partial use
2. getting of specific material According to source
1. voluntary – constituted by will or agreement of parties or by a testator 2. legal – those constituted by law for public use or private interest 3. mixed – partly by agreement and partly by law
Article 617
Consequence of Inseparability
• Easements cannot be sold or donated or mortgaged independently of the real property to which they may be attached
• Registration of the dominant estate without the voluntary easement – does NOT extinguish the easement
• If servient estate – extinguishes the voluntary easement Except:
1. actual knowledge of the existence of the unrecorded easement
2. there is an understanding or stipulation that the easement would continue to exist
• Actual knowledge of third persons is equivalent to registration Article 618
• Partition or division of an estate does NOT divide the easement
• Increase in the number of owners – does not make the easement more burdensome
Article 619
Judicial declaration that an easement exists – not creating one, but merely declares the existence of an easement created either by law or by the parties or testator.
Article 620 Modes of Acquiring
1. If continuous and apparent – by TITLE or by PRESCRIPTION (ten years) 2. All others – by TITLE only
• Intestate succession – does not create an easement but merely transmits an easement already existing
• Prescription in Art. 620 – requires 10 years irrespective of good faith or bad faith Article 621
Rules
1. Positive – from the day the dominant estate began to exercise it
2. Negative – from the time NOTARIAL PROHIBITION was made on the servient estate Article 622
Easements that may be acquired only by title
1. continuous non-apparent – because they are not public
2. discontinuous apparent – because the possession is not uninterrupted
3. discontinuous non-apparent – because possession is neither public or uninterrupted Requisites of Prescription
1. possession in the concept of owner 2. public
3. peaceful 4. uninterrupted Article 623
Proof of existence of easements
1. the deed of recognition by the servient owner 2. final judgment
Article 624
Apparent signs of an easement that apparently exists
• originally, no true easement because there is only one owner
• sign of the easement – merely an outward indication that the easement exists
• it is NOT essential that there be an apparent sign between the two estates, it is important that that there is an apparent sign that an easement exist
Rules
1. Before alienation – NO true easement 2. After alienation –
a. There arises an easement if the sign continuous to remain unless there is a contrary agreement
b. There is no easement if the sign is removed or if there is an agreement to this effect
• If the DEED be silent, the easement exists unless the sign be removed
Article 625
• Unless the necessary rights are also granted, the right to the easement itself is rendered nugatory
• Necessary rights include repair, maintenance, and accessory easements
• To prejudice third persons, voluntary easements must be registered. Registration is generally not essential for legal easements.
Article 626
• Easements appurtenant – easements with a dominant estate
• Easements in gross – without a dominant estate, purely personal
Article 627 Article 628 Article 629 Article 630
Rights of the DOMINANT estate
1. to exercise the easement and all necessary rights
2. to make on the servient estate, all the necessary works for use and preservation of the servitude, BUT – a. must be at his own expense
b. must notify the servient estate c. select convenient time and manner
d. must not alter the easement nor render it more burdensome 3. ask for mandatory injunction to prevent impairment or obstruction 4. to RENOUNCE totally
Obligations of the DOMINANT estate 1. cannot alter the easement 2. cannot make it more burdensome
a. he cannot use the easement except for immovable originally contemplated
b. in easement of right of way, cannot increase width of path or deposit soil outside the boundaries but may allow others to pass unless the contrary has been stipulated
3. if there be several dominant estates, each must contribute to necessary repairs and expenses in proportion to the benefits received by each estate
Rights of the SERVIENT estate
1. retain ownership and possession of the portion of his land affected by the easement
2. to make use of the easement, unless deprived by stipulation, provided that the exercise of the
easement is not adversely affected, provided further that he contributes to the expenses, unless there is a contrary stipulation
3. to change the location of a very inconvenient easement, provided an equally convenient substitute is made, without injury to the dominant estate
Obligations of the SERVIENT estate
1. cannot impair the use of the easement
2. must contribute to the expenses in case he uses the easement, unless there is a contrary stipulation 3. in case of impairment, to restore conditions to the status quo at his expense plus damages
4. to pay for the expenses incurred for the change of location or form of easement Article 631
Modes of Extinguishment
1. merger in the same person of the ownership of the dominant and servient estates 2. non-user for ten years
From what time to compute:
• discontinuous – from the time it ceased to be used
• continuous – from the day on which an act contrary to the same took place
3. when either or both of the estates fall into the condition that the easement cannot be used
• bad condition of the tenement or impossibility of use – merely suspends since possibility of use revives the easement
4. expiration of the term or fulfillment of the condition 5. renunciation
6. redemption
Other causes of extinguishment 1. expropriation
2. permanent impossibility of use
3. annulment, rescission, or cancellation of the title 4. abandonment of the servient estate
5. resolution of the right of the grantor to create the easement
6. registration of the servient estate as FREE, easement was not registered 7. in legal easement of right of way, opening of adequate outlet to the highway Article 632
Voluntary Easements
• the easement itself may prescribe
• the form or manner of using may also prescribe
Legal Easements
• some legal easements do not prescribe, moreover, the right to exercise them cannot also prescribe.
But the form and manner of using them may prescribe
• some legal easements do prescribe, like the servitude of natural drainage Article 633
• co-ownership – the use of one prevents prescription with respect to others because of INDIVISIBILITY Article 634
Legal Easements – imposed by law and which have for their object:
1. public use
2. or the interest of private persons Different Legal Easements
1. easements relating to waters 2. right of way
3. party wall 4. light and view 5. drainage
6. intermediate distances 7. easement against nuisance 8. lateral and subjacent support Article 635
How public or communal easements are governed 1. special laws and regulations
2. Civil code (suppletory) Article 636
How legal easements for private interests are governed
1. agreement of interested parties not prohibited by law nor prejudicial to third persons 2. in default of (1), general or local laws and ordinances for general welfare
3. in default of (2), Civil Code Article 637
Legal Easements relating to waters 1. natural drainage of lands 2. natural drainage of buildings
3. easement on riparian banks for navigation, floatage, fishing, salvage 4. easement of a dam
5. easement of drawing water or for watering animals 6. easement of aqueduct
7. easement for the construction of a stop lock or sluice gate Art 637 – natural drainage of lands - prescribes by non-user for 10 years What lower estates are obliged to receive
1. water which naturally and without the intervention of man descends from the higher estates 2. stones and earth carried by the waters
Art50, PD1607
1. cannot construct works that will impede the natural flow unless he provides an alternative method of drainage
2. owner of the higher estate cannot make works that will increase the natural flow Duties of the servient estate
1. cannot construct works that will impede the easement, divert the flow, and burden another tenement 2. BUT he may regulate or control the descent of the water
3. should he really cause an OBSTRUCTION, the easement may be extinguished by non-user and barred by prescription if the action to destroy is brought only after 10 years
Duties of the dominant estate
1. he cannot make works that will INCREASE the burden 2. may construct works preventing erosion
3. if descending waters are result of artificial development or proceed from industrial establishment or overflow from irrigation dams – should pay compensation for loss or damage
• a CONTRACT, onerous or otherwise, may extinguish the legal easement provided no injury to third persons
• NO indemnity required – if conditions in the article are complied with
• If water that flows are collected from man-made lagoons – indemnity is required (compensation)
Article 638
Easements along riparian banks
• Urban – 3 meters
• Agricultural – 20 meters
• Forest – 40 meters
• TOW PATH – 2 meters for animals, 1 meter for pedestrians
• All river banks are of public ownership except river banks which had already become of private ownership under the Siete Partidas
Easements allowed
1. on banks of rivers, a public easement for:
a. navigation b. floatage c. fishing d. salvage
2. on banks of navigable or floatable rivers, also the easement of TOW PATH – for the exclusive service of river navigation and floatage
Payment of Indemnity
1. if land be of PUBLIC ownership – NO indemnity 2. if private – indemnity
Effect if municipal ordinance make easement impossible – the authority of local governments to enact municipal ordinances is subject to the general limitation that the same shall not be repugnant to law Article 639
Easement for the construction, abutment, or buttress of a dam
• payment of indemnity is required Article 640
Easements for drawing water or for watering animals 1. they can only be imposed for reasons of PUBLIC USE 2. must be in favor of a TOWN or VILLAGE
3. proper indemnity must be paid Article 641
• principal easement – for drawing water and watering animals
• accessory easement – easement of right of way Requirements for such easement to exist
1. must be for PUBLIC USE 2. in favor of a town or village
3. sought not by one individual but the town or village 4. payment of proper indemnity
5. right of way – maximum of 10 meters Article 642
Article 643 Article 644 Article 645 Article 646
Legal Easement of Aqueduct
• right to make water flow thru intervening estates in order that one may make use of said waters
• easement of right of way does not necessarily include easement of aqueduct Requisites
1. indemnity must be paid – amount depends on duration and inconvenience caused 2. if for private interest – cannot be imposed on existing:
a. buildings b. courtyards c. annexes d. out-houses e. orchards f. gardens
g. can be imposed on other things – provided no injury to said properties 3. There must be proof:
a. That he can dispose of the water
b. Water is sufficient for use for which it is intended c. Most convenient and least onerous to third persons d. Proper administrative permission be obtained Possible ways of making easement effective
1. open canal
2. covered or closed canal 3. tubes or pipes
Obligations of the dominant owner
1. to keep the aqueduct in proper use or care 2. to keep on hand necessary materials for its use
Right of servient estate to fence or build over the aqueduct as long as:
1. no damage is caused
2. or repairs or cleanings become impossible
• for legal purposes the easement is considered continuous and apparent – to make the easement susceptible to acquisitive prescription fro the benefit of agriculture
Article 647
Requisites if construction of a stop lock or sluice gate 1. purpose must be for irrigation or improvement 2. the construction must be on the estate of another 3. damages must be paid
4. third persons should not be prejudiced Article 648
• PD 1607 will PREVAIL Article 649
Easement of Right of Way – allowed to pass over another’s land Requisites:
1. The property is surrounded by estates of others 2. No adequate outlet to a public highway
3. Payment of proper indemnity - use before indemnity is not allowed 4. Must be established at the point least prejudicial to the servient estate 5. The isolation must not be due to the proprietor’s act
6. Demandable only by the owner or one with a real right like a usufructuary
• Its existence does not depend on the consent of the co-owners being a legal easement and not a voluntary one
• NOT entitled to easement for failure to meet the requisites
• Mere inconvenience for the dominant estate is not enough to serve as basis for an easement of right of way
• The burden of proving the existence to validly claim the right of way lies on the owner of the dominant estate
Proper indemnity
• PERMANENT – pay the value of the land occupied by the path plus damages
• TEMPORARY – pay for the damages caused Classification of right of way
1. Private 2. Public
Easement in favor of the Government
• Only the easement of a public highway, way, private way established by law, or any governmental canal or lateral thereof
• It is necessary that the easement is pre-existing at the time of the registration of the land in order that the owner be compelled to respect it
• Easement not pre-existing – there should be proper expropriation proceedings and payment of just compensation
Article 650
Easement of right of way – point least prejudicial to the servient estate, distance be shortest to the public highway
Article 651 Width of the Path
• May be modified from time to time depending on the reasonable needs of the dominant estate
• Pathway should be sufficient for use of automobiles(Larracos vs. Del Rosario) Article 652
Article 653
Rules – when land acquired by sale, easement of right of way
• ENCLOSING estate is that of the grantor – grantee does NOT pay
• ENCLOSED estate is that of the grantor – grantor MUST pay Article 654
Ownership, Repairs, Taxes
• Ownership – servient estate, even permanent, thus he pays all the taxes
• BUT the dominant estate
a. Should pay for the repairs b. Pay proportionate share of taxes Article 655
Extinguishment of right of way a. Opening of a new road
b. Joining the dominant estate with another with access to public highway. BUT the new access must be adequate and convenient.
• Extinguishment NOT automatic, servient estate “may” demand.
• NOT applicable to voluntary easement of right of way
• If easement is temporary, no return of indemnity because damage had already been caused Article 656
Temporary easement of right of way
• Proper indemnity must be given
• “Indispensible” – great inconvenience is sufficient Article 657
Width of Right of way for passage of livestock 1. Animal path – 75 meters
2. Animal trail – 37 meters and 50 cm 3. Cattle – 10 meters
• Payment of indemnity
• Can only be imposed for reasons of public use in favor of a town or village Article 658
Easement of party wall – wall at the dividing line of the estates Article 659
How Presumption that a wall is a party wall be rebutted:
1. Title to the contrary
2. Exterior signs to the contrary 3. Proof to the contrary
• Title prevails over exterior sign
Article 660 Exterior signs
• If the owner has signs in his favor, and some against him, they cancel each other, unless it can be shown from the purpose of the wall that it had been made for the exclusive benefit of one
Article 661
Presumption of party ditches or drains – rebuttable Article 662
Repairs and construction on party wall – proportionate contribution Renunciation can be made – UNLESS:
1. The repair had already been contracted for and made 2. He still uses the wall
Requisites
1. Must be total or complete renunciation
2. Must be made voluntarily and full knowledge of the facts 3. Must be made before the expenses are incurred
4. Is made with the implied condition that the other owner should meke or pay for the repairs 5. Must be of both share in the wall and the land
Article 663
• Indemnification must be made for damages Article 664
Right to increase height of the party wall
• Must do so at his own expense
• Pay for the necessary damages caused even if temporary
• Bear the cost of maintenance of the portion added
• Pay for the increased cost of preservation
• Must reconstruct if original wall cannot bear the increased height
• Must give additional space if wall be thickened
• He will however be the EXCLUSIVE owner of the additions unless 665 is availed of Article 665
• May acquire part-ownership in the additions – pay the value at the time of acquisition Article 666
• Use by the co-owners of the wall Article 667
• Prohibition to make an opening thru the party wall – any window or aperture of any kind Article 668
Easement of Light and View
• Positive – window is thru a party wall – prescription counted from time of the opening of the window
• Negative – window thru one’s own wall – from the time of notarial prohibition upon the adjoining owner Article 669
Restricted windows – openings for light and not view Restriction
1. Maximum size – 30 sq. cm.
2. Must have an iron grating embedded in the wall 3. There must be a wire screen
4. Opening must be at the height of the ceiling beams or immediately inder the ceiling
• If there be several openings – restrictions must be complied with for every opening
• If there be several openings – restrictions must be complied with for every opening